VETERANS AFFAIRS MEDICAL CENTER HUNTINGTON, WEST VIRGINIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2344, AFL-CIO

OFFICE OF ADMINISTRATIVE LAW
JUDGES

WASHINGTON, D.C. 20424-0001

VETERANS AFFAIRS MEDICAL CENTER HUNTINGTON, WEST
VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2344,
AFL-CIO

Charging Party

Case No. WA-CA-20369

Peter A. Niceler, Esquire

For the Respondent

Christopher M. Feldenzer, Esquire

For the General Counsel

Mr. Carl H. Blevins

For the Charging Party

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, etseq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, etseq., concerns two
unilateral changes: one involved the stopping of annotating on
posted work schedules leave usage, overtime, unscheduled time,
etc., which Respondent asserts it stopped because public disclosure
of such information violated the Privacy Act and it was not
required to bargain concerning a change in practice to comply with
law; the other involved the use of VA seniority for selection of
vacations rather than total government service, and Respondent
asserts it was not required to bargain about a change in practice
to conform to the terms of a negotiated agreement.

This case was initiated by a charge filed on February 19, 1992
(G.C. Exh. 1(a)), which alleged violations of §§ 16(a) (1), (5) and
(8) of the Statute. The Complaint and Notice of Hearing issued on
May 29, 1992 (G.C. Exh. 1(b)), alleged violations of §§ 16(a)(1)
and (5) only and set the hearing for a date, time and place to be
determined later. By Order dated July 9, 1992 (G.C. Exh. 1(d)), the
hearing was scheduled for September 24, 1992, in Huntington, West
Virginia. By Notice, dated September 10, 1992 (G.C. Exh. 1(f))
pursuant to motion of Respondent, to which there was no objection,
for good cause shown, the hearing was rescheduled for October 7,
1992, pursuant to which a hearing was duly held on October 7, 1992,
in Huntington, West Virginia, before the undersigned. All parties
were represented at the hearing, were afforded full opportunity to
be heard, to introduce evidence bearing on the issues involved, and
were afforded the opportunity to present oral argument which each
party waived. At the conclusion of the hearing, November 9, 1992,
was fixed as the date for mailing post-hearing briefs which time
was subsequently extended, on motion of Respondent, to which the
other parties did not object, for good cause shown, to December 9,
1992. Respondent and General Counsel each timely delivered, or
transmitted by facsimile, a brief on December 9, 1992, which have
been carefully considered. Upon the basis of the entire record, I
make the following findings and conclusions:

A. Change of seniority for vacation
selection.

The Master Agreement between the Veterans Administration and
American Federation of Government Employees, effective August 13,
1982, in Article 17, "TIME AND LEAVE" in Section 2 C. provides as
follows:

"C. If conflicts arise between employees' annual leave
requests, they shall be resolved consistent with

The Local [supplemental] Agreement between Respondent and AFGE,
Local 2344 (G.C. Exh. 2(b)) became effective March 3, 1978(2), and in Article XI, "LEAVE" Section 3
provided as follows:

"Section 3: Where there is a conflict of
choices for annual leave for the same time, the employees concerned
will attempt to resolve the situation by private discussion. If,
after this discussion a mutual agreement cannot be reached,
the employee with the longest total VA Service
will be given first choice. . . ." (G.C. Exh. 2(b), Art. XI,
Section 3) (Emphasis supplied).

Notwithstanding Article XI, Section 3, it is undisputed that
the practice throughout the bargaining unit, including the Nursing
and Dietetic Service, from 1982 had been that Service Computation
Date, rather than VA Service, was used for the choice of vacation
time (Tr. 29, 30, 33, 53; G.C. Exh. 5(a)). Although "Service
Computation Date" includes all federal government employment, the
significant factor here was the inclusion of active duty military
service (Tr. 30, 33).

Respondent concedes that in, or about, November 1991, it
unilaterally changed the practice in the Nursing and Dietetic
Services of using Service Computation Date to the use of VA Service
only(3) for selection of vacations
(Tr. 34, 53, 54). The VA Service Computation Date list (G.C. Exh.
5(b)) when compared to the Service Computation Date list (G.C. Exh.
5(a)) shows that the change affected every employee in some manner,
although for some, such as Keith Mays and Gary Whitley, their
relative position on the list was unchanged, others such as Ray
Collinsworth, who lost about ten years seniority, moved down on the
seniority list, while some, such as Louise Warren, who had no
military service, moved up on the seniority list (Tr. 32, 33). Mr.
Thacker stated that the change was made to comply with the Local
Agreement (Tr. 53, 54) and Respondent asserts, in part, that it was
not obligated to bargain about a matter already negotiated (Tr. 41;
Respondent's Brief, pp. 2, 3).

Procedures for resolving conflicts between employee leave
schedules is a condition of employment. National
Association of Government Employees, Local R4-75, 24 FLRA
56, 57 (1986). Although the parties in 1978 negotiated as the
procedure for resolving conflicts in the selection of vacations the
use of VA service, since 1982 the parties have followed a different
procedure, namely the use of Service Computation Date. Obviously,
the parties over a period of many years engaged in a practice that
differed from the contractual procedure. As the practice
constituted a condition of employment within the meaning of §
3(a)(14) of the Statute, it could not be unilaterally altered.
U.S. Department of the Navy, Naval Avionics
Center, Indianapolis, Indiana, 36 FLRA 567, 570 (1990).
Respondent by its unilateral action in changing an established
condition of employment violated §§ 16(a)(1) and (5) of the
Statute. Respondent's assertion that the change was "a de minimis
change" (Respondent's Brief, p. 3) is without merit. The Authority
has made it clear that where, as here, the decision to make a
change is negotiable,

". . . the question is whether the statutory obligation to notify
and negotiate with the exclusive representative concerning the
change was fulfilled, not the extent of impact . . . upon the unit
employees." (Department of Health and Human
Services, Social Security Administration, Baltimore,
Maryland, 19 FLRA 1085, 1088 (1985).

B. Discontinuance of annotating posted work
schedules in Dietetic Service.

It also was undisputed that it had long been Respondent's
practice to annotate the posted work schedules in Dietetic Service
to show sick leave taken, annual leave taken, hours worked outside
scheduled hours, change of days off, and for part-time employees
hours of unscheduled work (UNS). The annotated work schedules,
which as annotated showed all hours worked, charged to annual or
sick leave, or AWOL, were initialed by the supervisors to certify
the correctness of the information and constituted the pay records
from which the timekeeper transferred the data shown to the time
cards for payroll purposes (G.C. Exh. 3; Res. Exh. 2; Tr. 45,
46-47, 48, 49). For example, for the second week of payroll period
15 [July 28 - August 10, 1991] General Counsel Exhibit 3 shows,
interalia, as
follows: the regular schedule for full-time employees is shown to
the right of their names (Blevins 6-2½, i.e. 0600-1430); scheduled days off shown by the typed
"xs"; annotations for Mr. Blevins show sick leave (SL) on Thursday
and Friday; an annotation for Mr. Perry also shows two days of sick
leave; for Mr. Adkins an annotation shows that he worked on
Saturday 0930-1800, rather than his scheduled hours of 1030-1900;
and annotations for Mr. Smith show that he took 6 hours sick leave
on Wednesday (1300-1900), and that he took annual leave on
Thursday. The scheduled hours for part-time employees, beginning
with Mr. Collinsworth, are for the most part the typed hours. Thus,
Mr. Collinsworth was scheduled to work 0600-1000 on Sunday,
0700-1100 on Monday when, in addition, he worked unscheduled hours
1130-1430 (3 UNS), he worked the same hours on Tuesday, on
Wednesday he had 3 unscheduled hours, i.e.
hours outside his regular schedule for that day of 0600-1000,
which in fact were scheduled in advance
(Tr. 24), as well as his regularly scheduled hours, on Thursday,
his scheduled day off, he had eight hours unscheduled time
(0600-1430) and on Saturday had three unscheduled hours (1130-1430)
in addition to his scheduled hours (0600-1000). Of course, sick
leave and annual leave was shown where applicable, e.g. Mr. Carr: annual leave on Monday, sick leave on
Friday. (G.C. Exh. 3; Tr. 23-25).

In late November 1991, Mr. Thacker, Chief of Food Production
and Service, told Mr. Ray Collinsworth he could not make Xerox
copies of the (annotated) work schedule (Tr. 44). Another employee
told Mr. Thacker that Mr. Dallas Crabtree regularly made copies of
the work schedules, whereupon, Mr. Thacker went to Mr. Crabtree and
told him he was not allowed to make copies of the work schedules
and that he was not to do it again. In the meantime, Mr.
Collinsworth had gone to Personnel to find out what regulation Mr.
Thacker based his decision that the schedules could not be copied
(Tr. 45). Mr. Thacker told Personnel he knew only that he had been
told throughout his sixteen years with VA that it should not be
done and suggested that Personnel check with Fiscal.

Mr. Samuel S. Stewart, Assistant Chief, Fiscal Service received
the call from Personnel and when he learned that Dietetic Service
was annotating the posted work schedules he told Personnel that
that was not proper, but that he would call VA's Central Office in
Washington, D.C., to verify his statement. VA Central Office
responded that the information annotated on the work schedules fell
under the Privacy Act and should not be published for public
consumption (Tr. 56). Washington Central Office's advice was
confirmed in writing (Res. Exh. 1, second page; Tr. 57) and
Personnel was sent a written confirmation (Res. Exh. 1; Tr. 57).
Veterans Affairs Regulation MP-6, Part V, Supp. No. 2.2, Change 7,
Section 102.04 "TIME AND ATTENDANCE REPORTS" provides in part as
follows:

"(2) Privacy Act. The Time and
Attendance Report (VA Form 4-5631), as well as the information

contained on this report, is protected by the Privacy Act.
. . .

. . .

"(3) Use of Subsidiary Records. VA
Form 4-5631 is a preprinted, computer-generated form and

is the official record used for time, attendance, and leave
for all employees on the rolls. No other record is

required; however, when a subsidiary record is used, it
must bear the signature of a responsible employee

. . . that the employees whose names appear thereon have
performed the hours or days of duty for which

credited, or the hours or days charged for absence from
duty. . . ." (Res. Exh. 3).

Upon verification by Fiscal that the practice of annotating the
posted work schedules was in violation of the Privacy Act, Mr.
Thacker discontinued the annotation practice and posted a "blank
schedule" for public view (G.C. Exh. 4; Tr. 45). The so called
"blank" schedule shows, of course, the scheduled hours of each
employee and the scheduled days off for each employee. Mr. Blevins
testified that the change occurred in November 1991 (Tr. 25). Mr.
Thacker stated that his conversation with Mr. Collingsworth
occurred on November 29, 1991, so that the change probably did not
occur until the very end of November or the first of December 1991.
This is borne out by the Union's letter dated December 12, 1991
(G.C. Exh. 6(a)). Since the change, as General Counsel Exhibit 4
shows, there has been no annotation to show leave or unscheduled
hours (Tr. 21, 22, 23).

Mr. Stewart testified that the annotations on the posted work
schedules were improper; VA's Central Office confirmed Mr.
Stewart's conclusion that the information annotated on the work
schedules fell under the Privacy Act and should not be published
for public consumption; and VA's regulations plainly state that:
(a) Time and Attendance Reports, and the information contained
thereon, are protected by the Privacy Act; and (b) Subsidiary
Records, when used, are part of the Time and Attendance Reports
(Res. Exh. 3). Plainly, the annotated time sheets, signed by the
responsible supervisors, constituted Subsidiary Records (Res. Exhs.
2, Paragraph 5; 3, Sec. 102.04(3)). General Counsel offered no
testimony or evidence and cites no authority to refute Respondent's
testimony and evidence that public disclosure of the data
constituting the employees time and attendance record (all hours
worked, all leave taken, all unexcused time, etc.) violated the
Privacy Act and that the practice was, therefore, unlawful. On the
basis of the record, I find that the public disclosure of the
employees time and attendance by the annotation of the data onto
the posted work schedules was in violation of the Privacy Act, 5
U.S.C. § 552a, and the Regulations of Department of Veterans
Affairs. Because the practice was unlawful, Respondent had no
obligation to bargain concerning its decision to terminate the
practice; neverthe-less, Respondent was obligated to give the Union
notice of the change and an opportunity to request bargaining over
the impact on unit employees of its decision to discontinue the
unlawful past practice and, as it failed to do so, Respondent
violated §§ 16(a)(5) and (1) of the Statute. Department of the Interior, U.S. Geological Survey,
Conservation Division, Gulf of Mexico Region, Metairie,
Louisiana, 9 FLRA 543, 545-546 and n.9 (1982); Department of the Air Force, Air Force Logistics Command,
Ogden Air Logistics Center, Hill Air Force Base, Utah, 17
FLRA 394, 395-396 (1985); U.S. Department of
Interior, Bureau of Reclamation, 20 FLRA 587, 588-589
(1985); U.S. Department of Justice, Immigration
and Naturalization Service, Washington, D.C., 44 FLRA 343,
353 (1992).

There is no dispute concerning the posting of work schedules.
As noted above, Respondent continues to post work schedules (G.C.
Exh. 4). It is only the annotation of posted work schedules that
Respondent has terminated. Indeed, the supervisors maintain in
their office, out of public view, an annotated work schedule for
payroll purposes (Tr. 45). Because this is not an information case
there is no question of balancing competing interests.

Having found that Respondent violated §§ 16(a)(5) and (1) of
the Statute by its unilateral decision to change the long
established practice of using Service Computation Date for the
choice of vacation time and by its failure to give the Union an
opportunity to bargain over the impact of its decision to terminate
in the Dietetic Service its unlawful dissemination of time and
attendance data, it is recommended that the Authority adopt the
following:

ORDER

Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. § 7118(a)(7),
and 2423.29 of the Regulations, 5 C.F.R. § 2423.29, it is hereby
ordered that the Veterans Affairs Medical Center, Huntington, West
Virginia, shall:

1. Cease and desist from:

(a) Refusing to bargain in good faith with the American
Federation of Government Employees, Local 2344, AFL-CIO
(hereinafter, "Union"), the exclusive representative of its
employees, concerning any decision to change the established
practice of using Service Computation Date for the choice of
vacation time and refusing to provide an opportunity for the Union
to bargain, to the extent consonant with law and regulation, with
respect to the impact and/or implementation of a legally required
change in its practice of disseminating time and attendance data in
the Dietetic Service by annotating such information on posted time
schedules.

(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.

2. Take the following affirmative action in order to effectuate
the purposes and policies of the Federal Service Labor-Management
Relations Statute:

(a) Forthwith withdraw and rescind its November or
December 1991, decision to use VA Service Computation Date for the
selection of vacations and immediately reinstate the established
practice of using Service Computation Date for the selection of
vacations; provided, however, that the reinstatement of the use of
Service Computation Date for vacations already scheduled to be
taken during the present calendar year will avoid, to the fullest
extent possible, any adverse impact for employees who have chosen
vacations on the basis of VA service only.

(b) Bargain in good faith with the Union on any
proposed change of the use of Service Computation Date for the
selection of vacations.

(c) Upon request, negotiate with the Union concerning
the impact and implementation of discontinuing the practice of
annotating posted work schedules in the Dietetic Service.

(d) Post at its facilities at the Veterans Affairs
Medical Center, Huntington, West Virginia, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
Medical Center Administrator, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure that such Notices are not altered, defaced, or covered by
any other material.

(e) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the
Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC
20037, in writing, within 30 days from the date of this Order, as
to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY

Administrative Law
Judge

Dated: September 20, 1993

Washington, DC

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOT refuse to bargain in good faith with the American
Federation of Government Employees, Local 2344, AFL-CIO
(hereinafter, "Union"), the exclusive representative of our
employees, concerning any decision to change the established
practice of using Service Computation Date for the choice of
vacation time.

WE WILL NOT refuse to provide an opportunity for the Union to
bargain, to the extent consonant with law and regulation, with
respect to the impact and/or implementation of a legally required
change in our practice of disseminating time and attendance data in
the Dietetic Service by annotating such information on posted time
schedules.

WE WILL NOT in any like or related manner interfere with, restrain
or coerce our employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.

WE WILL forthwith withdraw and rescind our November or December
1991, decision to use VA Service Computation Date for the selection
of vacations and WE WILL immediately reinstate the established
practice of using Service Computation Date for the selection of
vacations; provided, however, that we will avoid, to the fullest
extent possible, any adverse impact for employees who have
vacations scheduled in the current calendar year selected on the
basis of VA service only.

WE WILL bargain in good faith with the Union on any proposed change
of the use of Service Computation Date for the selection of
vacations.

WE WILL, upon request, negotiate with the Union concerning the
impact and implementation of discontinuing the practice of
annotating posted work schedules in the Dietetic Service.

(Activity)

Date: ________________________ By:
________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly wit